Split Works Debate Raises Thorny Issues For Music Companies (And For The Rest Of Us)

from the what's-a-free-market dept

Michael Corleone would understand. Just when music companies and their performance-rights organization (PROs) thought they were getting out from under supervision by the U.S. Department of Justice, the DOJ may be about to pull them back in.

For some time now, the DOJ's Antitrust Division has been investigating whether to modify the special antitrust consent decrees that govern the two leading PROs: the American Society of Composers And Publishers (ASCAP) and Broadcast Music Inc. (BMI). These broad settlements, originally reached in 1941, were designed to prevent anti-competitive behavior by the music publishers and set the rules for how the PROs can operate. This includes licensing on non-discriminatory terms (preventing the PROs from blocking a radio station or music service from playing their songs).

The consent decrees have been modified before; BMI's was amended in 1994 and ASCAP's in 2001. But some music publishers argue these agreements are showing their age. The publishers and the PROs are hoping (and expressly asking) the DOJ to agree with their view that, here in the Internet Era, digital music doesn't need so much government intervention. Some suggest the DOJ's antitrust lawyers have shown sympathy to arguments for a "partial withdrawal" of digital copyrights from the consent-decree framework.

But new arrangements to replace that framework ultimately may pull the labels and PROs back in. Billboard reported recently that the DOJ may be considering revisions that impose an even tighter regulatory scheme. According to the report, the Justice Department circulated a letter letting ASCAP and BMI know it is considering allowing any single co-owner of a "split work" — also known as a "fractional, "co-authored" or "co-pub" composition — to issue a license for 100 percent of the work. This is in contrast to the current practice in the music industry, whereby everyone who has a piece of the copyright needs to agree to license the work. The music companies have let their resulting unhappiness be known, albeit only off-the-record.

Not everyone has been so unhappy with the DOJ trial balloon on split works. Billboard quoted streaming service Pandora as saying: "We appreciate that the Department of Justice is taking steps to prevent further anti-competitive behavior in music licensing." Matt Schruers of the Disruptive Competition Project has framed the reported DOJ inquiry as actively pro-competition. Per Schruers, the music industry has created "artificial gridlock" among its rights-holders by allowing each co-author the power to unilaterally veto, but not unilaterally authorize, the license to use a copyrighted song. This means that a single rights-holder with only a small percentage of ownership in the work may pull the work when a licensing agreement ends, or deny a license to begin with.

These sorts of unilateral decisions by fractional rights-holders have been costly to services like Pandora Radio. Two years ago, Universal Music Publishing Group, owners of at least fractional rights in 20 percent of the music in the BMI catalog, withdrew its digital rights from BMI, a move that was followed by doubling the rates it sought to charge Pandora. And in another example, a different publisher, BMG, also withdrew its rights, but in this instance the result was Pandora took down all of BMGs wholly owned works and Pandora's customers were cut off from a substantial trove of the BMG catalog.

Is this what Congress intended with its last major revision of the Copyright Act, back in 1976? It doesn't appear so. Contemporary reports from the U.S. House summarizing the changes conclude:

"Under the bill, as under the present [pre-1976] law, coowners of a copyright would be treated generally as tenants in common, with each coowner having an independent right to use or license the use of a work, subject to a duty of accounting to the other coowners for any profits."

That's not always how split works licensing model operates today, as the UMG example demonstrates. To license use of a song, Internet companies may end up having to cut separate deals with each fractional rights-holder. More deals mean more transaction costs, as well as more potential dissenters with the power to scuttle those deals. The process is particularly onerous for new potential entrants to the digital market, and the leverage enjoyed by the major labels and publishers only grows as they continue to consolidate. Today, Sony alone controls nearly half of all royalties collected.

The purpose of copyright is not merely to provide monopoly revenue streams to content companies, but to ensure that creative works actually reach the public. Thus, for the DOJ to clarify obligations under the decades-old consent decrees could make sense. Allowing fractional rights-holders to authorize use of a work unilaterally is one potential avenue to untangle the complex web of rights in music and bring the licensing system more in-line with those of other copyrighted works with multiple authors.

To be clear, no one is asking to eliminate the consent decrees, even though all sides officially say they favor competition and the free market. Ironically, those who laud the competition they say would follow from allowing rights-holders to "partially withdraw" digital music rights tend to fear simplification of the system as a whole, precisely because would make competition among rights-holders more likely.

For instance, they oppose allowing fractional rights-holders to license joint-authored songs on grounds that this would create a "race to the bottom" in digital copyright licensing, lowering prices that could be commanded on the open market. Publishers and PROs thus must find a way to thread the needle in arguing both that the free market commands we let them partially withdraw digital rights and that the free market is lousy when co-authors compete with one another on price.

Any recommended modifications by the DOJ would have to be agreed to by the PROs and then approved by a court. In the meantime, we need a more robust public conversation around how to handle thorny issues like split works. Of course there's an irreducible tension between (a) the "exclusive rights" held by rights-holders in their "writings and discoveries" ("exclusive rights" just means the power to "exclude" non-rights-holders' use) and (b) the goal of the U.S. Constitution's Progress Clause, which gives Congress the power to grant such rights to "promote the progress of science and the useful arts" for rights-holders and non-rights-holders alike.

There are a few things about which almost everyone in this conversation already agrees: markets should be competitive; the public has an interest in copyright; and public policy should meet its Constitutional aim to encourage both creative and technological innovation. We can't help but wish, in navigating this thicket of thorny issues, we were discovering simpler arguments and simpler solutions.

Mike Godwin is General Counsel and Director of Innovation Policy at R Street Institute. Sasha Moss is a Google Policy Fellow at R Street Institute.

@ "the goal of the U.S. Constitution's Progress Clause" -- it's the "Copyright Clause" in likely more common usage, but good try at biasing discussion.

>>> "which gives Congress the power to grant such rights to "promote the progress of science and the useful arts" for rights-holders and non-rights-holders alike." -- NO, bit tangled propaganda there, using terms not in the Constitution. Everyone has the right to have their creations protected. NO ONE has the right to take the work of others. "Non-rightsholders" can't have any rights before the act of creation.

The US Constitution says: "securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries".

It's YOU who haven't read it. Nothing explicit about the public. You brush past the clause of WHO gets primary benefits to a subsidiary clause.

The Copyright Clause is start of practical compromises so that "Authors and Inventors" can reveal their creations for public benefit without being ripped off by either individuals or commercial scale copying.

Techdirt's (and these Googlers) position that the Copyright Clause is solely for public benefit is mere assertion that goes against the clear language. That you repeat Techdirt's position rather than quote the original is... well, typical of the site! It's faith-based teachings not actualities, let alone the clear simple morality that creators own their creations and have sole control of copies -- yes, SOLE control: media only licenses you to read/view the content.

Re: @ "the goal of the U.S. Constitution's Progress Clause" -- it's the "Copyright Clause" in likely more common usage, but good try at biasing discussion.

So long as the creator keeps a work private, or even secret, then there is no danger of piracy, and only a slight danger of of theft of the work, where they lose the only copy that they created.While a work these days is automatically copyrighted when fixed in a permanent form, it only comes into play when the work is published. For any creator that use a major publisher, label or studio to publish their work, they have to sign over their copyright and grant the publisher control over the production of copies. Indeed , until the Internet came along, for most creators of new works the only way they could get their works in the hands of a large audience was to transfer all their rights under copyright to a corporation, who frequently used accounting tricks to keep almost all of the income that the work created.Its is not the pirates that are keeping the artists in poverty due to the lack of payment for their efforts, but frequently the publishers, and it is not a new problem, as pointed out by Emilio Sagari who wrote in his final note to his publisher:

To you that have grown rich from the sweat of my brow while keeping myself and my family in misery, I ask only that from those profits you find the funds to pay for my funeral. I salute you while I break my pen. Emilio Salgari

Re: @ "the goal of the U.S. Constitution's Progress Clause" -- it's the "Copyright Clause" in likely more common usage, but good try at biasing discussion.

I enjoy that you can't even quote a full sentence to prove your point. The copyright clause is a whole one sentence long, and to make your point, you couldn't even include the full sentence. The full clause is:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

. The purpose of copyright is in that first half, to promote the progress of Science and the useful Arts. The second half you quote is only the means by which the promotion occurs. The first half shows a clear intent to enrich society and therefore the public. You yourself admit that ("..."Authors and Inventors" can reveal their creations for public benefit..."). The copyright clause is merely an incentive to provide those works to the public, not a grant of some moral right.

Re: Re: @ "the goal of the U.S. Constitution's Progress Clause" -- it's the "Copyright Clause" in likely more common usage, but good try at biasing discussion.

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

Actually, even that is not the full sentence. Technically it is:

The Congress shall have Power to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Rights to their respective Writings and Discoveris.

So there's even more to unpack, including the fact that all this is doing is giving Congress the power to do so *if it chooses* and solely for the sake of "promoting the progress of science and useful arts." And, as a history lesson, "science" meant "learning" at the time, while "useful arts" meant inventions.

Note that there's nothing about entertainment in there. But that's another issue for another day...

The point of the progress clause (which is correctly named in the article) is that Congress has the power to promote the public benefit of *learning* and *new inventions* if Congress so chooses, by giving certain *limited* excluisve rights to authors and inventors. That's it. The description in the article is accurate.

Re: Re: Re: @ "the goal of the U.S. Constitution's Progress Clause" -- it's the "Copyright Clause" in likely more common usage, but good try at biasing discussion.

The point of the progress clause (which is correctly named in the article) is that Congress has the power to promote the public benefit of *learning* and *new inventions* if Congress so chooses, by giving certain *limited* excluisve rights to authors and inventors. That's it. The description in the article is accurate.

We all know how important this little bit is to you, Mike. Congress doesn't HAVE to enact copyright laws. Duh. Hey, maybe one day you'll man up and actually tell us directly and honestly about whether you think authors should have any copyright rights. LOL!

Re: Re: Re: Re: Re: @ "the goal of the U.S. Constitution's Progress Clause" -- it's the "Copyright Clause" in likely more common usage, but good try at biasing discussion.

On the contrary, the fact that Mike is too dishonest to take an explicit, definitive position on copyright is worth repeating. I bring it up time and again on his own blog, challenging his intellectual honesty, and his continued refusal only proves my point.

Re: Re: Re: Re: Re: @ "the goal of the U.S. Constitution's Progress Clause" -- it's the "Copyright Clause" in likely more common usage, but good try at biasing discussion.

Here is a "man up" position for you. Just like you would do with a two year old. Because of all the bitching and moaning about the details, Eliminate it! Then we will give you something to really bitch about.

Re: @ "the goal of the U.S. Constitution's Progress Clause" -- it's the "Copyright Clause" in likely more common usage, but good try at biasing discussion.

Everyone has the right to have their creations protected.

Well, no, they don't. Mike has already pointed out that Congress is under no obligation to enact copyright laws, and under no obligations as to the precise nature of any copyright laws it does enact, other than that 1) copyrights must promote the progress of science; 2) copyrights must terminate after a limited time; 3) copyrights must initially vest in authors; 4) copyrights can only be granted to fixed expressions.

For example, until the late 19th century, the US deliberately did not grant copyrights to foreign authors (such as Charles Dickens, who was upset that all of his popular works were universally pirated over here). They didn't have a right to have their creations protected and until Congress decided that it was in the public interest to do so, they got zip.

NO ONE has the right to take the work of others. "Non-rightsholders" can't have any rights before the act of creation.

Well, no, that's strike two.

Everyone has the right to use creative works that were authored by another person, without permission or payment. This is a natural consequence of the right of free speech, which encompasses the right to repeat, verbatim, what someone else has said. This right always exists, but obviously it cannot be exercised with regard to a particular work prior to that work being created but only for obvious practical reasons.

There is not, however, a right to compel other people to help in the exercise of that right. If an author doesn't want to write a book, no one can make him. If he does, but he keeps it absolutely secret, no one can force him to divulge the fact that the book exists or what its text is, merely because they wish to copy it.

Once a third party has managed to access a work, however, of course he has a right to copy it at will.

Nothing explicit about the public.

Strike three, you're out: there's no rule that there has to be any explicit mention of the public.

For example, in the copyright clause, if the rights are granted for a limited time, this necessarily implies that the public is unrestricted by copyright for all other times. Since, as noted, the work doesn't exist to be used prior to its creation, this effectively means that once the copyright expires, the work belongs to the public. There is no explicit grant of works into the public domain anywhere in the Constitution or the Copyright Act; it's just the natural state of works when they're not copyrighted, so it's handled implicitly. Likewise, the public is only limited with regard to the exclusive rights of copyright; everything not granted to the author even during the term of the copyright remains in the public domain. The 1976 Copyright Act grants only a handful of exclusive rights to authors, mainly: the right to reproduce the work in copies; the right to distribute copies; the right to prepare derivative works; the right to publicly display the work; and the right to publicly perform the work. And all of those are subject to a list of limitations far too long to get into here. All other rights, such as the right to use the work (e.g. read, listen, watch, view) are in the public domain from day one. This is why when you say media only licenses you to read/view the content you're laughably wrong: the rights holder never had that right, and thus is incapable of licensing anyone to engage in it, and that's good because no one needs to license it from him, since they have that right (though not a right to compel access) already.

Plus of course, promoting the progress of science is in the public interest, and that's the singular goal of copyright. Granting rights to authors is merely a means to an end.

[The] position that the Copyright Clause is solely for public benefit is mere assertion that goes against the clear language.

Strike four. Why are you even still here?

No one is saying that authors and publishers aren't allowed to benefit from copyright. But their interests are beneath concern. What matters -- the only thing that matters -- is that the public benefits from copyright more than if there were no copyright, and ideally that the specific copyright law in force provides a greater net public benefit than any alternative (and if it doesn't, switch to one that does).

Copyright policy that sought to prevent authors from enjoying any benefit would fail; the whole mechanism of copyright is exploiting authors' greed by dangling the possibility of making money in front of them as we would dangle a carrot in front of a jackass to make it pull a wagon. If we specifically prohibited them from any sort of benefit, we'd have no carrot to exploit them with.

What people do say is that copyright must provide the greatest overall public benefit possible, and that the only metric that matters is how well it serves the public. There will surely be some benefits for others as well, but they're incidental in nature. Compromise between the public and authors is unacceptable because authors should only be given whatever benefits will result in the best outcome for the public. If authors are happy with what they're given, then great. If they're not, too bad, because any alternative that would make authors happier would necessarily be bad for the public. We're okay with authors not being happy. We don't actively want them to be unhappy, I for one wish authors well wholeheartedly, but I wouldn't compromise the public interest one iota for them.

the clear simple morality that creators own their creations and have sole control of copies

Strike five, and it's time to call security. Copyright is utilitarian in nature, from head to tail. There is no moral aspect, and there have never been copyright laws that are so generous with authors as you imagine, or perhaps hallucinate.

Re: Re: @ "the goal of the U.S. Constitution's Progress Clause" -- it's the "Copyright Clause" in likely more common usage, but good try at biasing discussion.

Re: Re: Re: @ "the goal of the U.S. Constitution's Progress Clause" -- it's the "Copyright Clause" in likely more common usage, but good try at biasing discussion.

Well, that's because he's a rabid idiot. I'm not really interested in trying to convince people with such closed minds. I was just using that schmuck as a prop to make sure that no one else gets suckered by him. A remote possibility here, I know, but I like to play it safe, and also it's a slow day here and I'm a little bored.

Many years ago, I used to play a lot of Starcraft, and one day I ran across an incredibly well-made fan campaign this guy had put together. Then he got together with a second guy to build a second part of the story, and it was amazing, to the point where a lot of people considered their work even better than the original Starcraft campaign.

They set up a forum, and a fan community developed, hanging out and talking about various stuff while waiting on the team (which grew to something like 5 people) to finish Part 3, which was going to be The Most Epic Thing Evar.

In the end, of course, it all came apart. The project was too ambitious, and real life was still progressing, and they ended up just releasing the script (which was awesome) and cancelling the project. But that was a few years later, and the community had taken on a life of its own. The forum had changed location a time or two, and it was now being maintained by the fans.

Somewhere along the line, Author #2 went completely off the deep end, getting heavily into Libertarianism, wild anti-government conspiracy theories, and just general unpleasantness. As he continued to clash with the rest of the community, eventually he tried to "punish" us by demanding that we remove our hosted copy of the campaign from the fan site, because he was a copyright holder and he could say that. He was making some very serious-sounding threats of getting lawyers involved if we didn't give in to his bullying.

Then, for the first time in years, Author #1 made a post on the forum, stating that his copyright claim was the strongest one, and he was just fine with us hosting it, and that was the end of that. Even Author #2 had to concede that much.

So I'm a bit confused to see the polar opposite going on in the music world...

Re: Music or everywhere?

The situation Mason describes could easily play out in community-driven software development too. Under the design posed in the article, that could have some very unpleasant consequences. Suppose you have a GPL-covered project with years of history. A new contributor joins, spends a few months doing useful things, then goes nuts. Could he legitimately and unilaterally grant a closed-source license covering the entire work (not just his comparitively small contributions) to a third party? I have no problem with the idea that he can relicense his portion of the work. In some cases, his portion might even be isolated enough that it could make sense to do so.

Also, no fair Godwining the article itself. For contentious copyright issues like this, someone should have the chance to Godwin the discussion threads. ;)

Re: Re: Music or everywhere?

The situation Mason describes could easily play out in community-driven software development too.

Heck, with as much scripting as a non-trivial campaign requires, it wouldn't be an exaggeration to call this project "software development" too.

And I don't want to give the wrong impression. Author #2 was a major contributor to every aspect of the project after Episode 1. His work really made a lot of the difference between Episode 1 (good) and Episode 2 (amazing). This wasn't some minor "spend a few months on this" thing. But he still was the secondary guy on the project, and when Author #1 said not to worry about it, everyone pretty much acknowledged right there that that settled the matter.

Multiple songwriters...

Years ago I had an album that had several songs' writing credits attributed to the band's name, not the names of the individuals. Other songs did have individual credits for the band members. At first glance it makes sense: set up the band as a holding company for attribution and let the band (usually the manager) distribute the royalties. But then: what happens if a member (or members) depart the band for whatever reason, and new member(s) come in? Since the credit went to the band and not the individual(s) do the new member(s) get royalties and the departed member(s) now get nothing for the credited work?

I'm glad I'm not in this industry, 'cause this is making my head spin!

ASCAP or ASSHATS

I have a simple solution, abolish collection societies for artists. It was a bad idea to begin with and has in NO way done anything to prove it usefulness in promoting or protecting musicians.

In order to expedite this I believe that copyright should not be transferable. In other words only the actual creator(s) of the work (actual artists involved in production not anyone else) should hold the copyright and this cannot be sold because it should not be a transferable right.

Collections of people, groups, corporations, etc. should not hold or represent copyrights. This creates a situation where we have right's holders that do not create, sit on work, let it stagnate, and try to use their monopoly rights to bully or force actions from other players.

I do not agree with the idea that someone else can hold an artists copyright, I do not agree with paying someone more than once for a job. I believe that our current attitudes towards IP in general has turned art into a commodity and destroyed a lot of diversity and creativity.

We are destroying our culture so we can allow a few players to manipulate our economic system and even society itself for their benefit. This is not a fair and equatable system and confuses capitalism with art before proving that one has ultimately anything to do with the other. Artists of all kinds create to create it is that simple and to pretend there is only a profit motivation really does ignore what art is throughput our history.

The purpose of copyright is not merely to provide monopoly revenue streams to content companies, but to ensure that creative works actually reach the public.

Really? The purpose of copyright is to "ensure that creative works actually reach the public," and yet this is accomplished by giving authors the right to REFUSE to let their works reach the public? Your premise is faulty. The purpose is not to "ensure" dissemination, but rather to incentivize it. There's a BIG difference between the two.

Re:

It was never intended to "give authors the right to REFUSE to let their works reach the public," though. That's a modern (and bizarre and counterproductive) innovation. The purpose of copyright was to keep abusive publishers from putting authors out of business by printing and distributing their works without compensating the authors.

The idea that someone would create something that adds to our culture and then actively try to prevent it from being added to our culture was as absurd in the Founding Fathers' day as it is today, and the fact that some people actually try to do that doesn't make it any less absurd; it just underscores that there are some really absurd people out there.

Re: Re:

Mason, let's fast forward a bit and look at what you just said in modern terms:

"The purpose of copyright was to keep abusive publishers from putting authors out of business by printing and distributing their works without compensating the authors."

With digital copying, high quality printers on every desk, and the software to make it all happen, have the public themselves not just taken the place of the publisher?

Think about it. The issue with publishers really existed because they had the ability to print and distribute books in ways that others could not. Today, the majority of the public has the equipment to take the same actions, printing and distributing works without compensating the authors. Are things really that different? If the bad acts of a publisher back in the day was enough to harm an author, would not the concerted actions of the public be generating the same net result?

"The idea that someone would create something that adds to our culture and then actively try to prevent it from being added to our culture was as absurd"

I don't think anyone is trying to stop things from entering the culture. Rather, I think that the common mistake is to assume that having something enter into the culture can only happen when the author or creator is effectively stripped of their rights. That is not the case at all.

As an example, we as a people didn't need to have endless playback of the Ed Sullivan show for it to enter into our culture. We didn't need to have torrents of the Tonight Show with Johnny Carson to have it in our culture. We don't need to download the latest SouthPark offering for it to be part of our culture - a goodly chunk of people watch every episode and can quote many of them from memory. For that matter, do we each need our own digital perfect copy of Monty Python and the Holy Grail before the Knights who say Ni could enter into culture?

The answer is obviously "of course not". A book being protected by copyright and having the author decline to to new editions printed doesn't suddenly rip it out of the culture. It's already there. It's already out there, being discussed, being sold and resold, lent, borrowed, and signed out of the library in all of it's existing versions. The author doesn't have a magic button to push to make all of the existing copies turn to dust or spontaneously burst into flames.

Culture isn't about having your personal copy. You and I can talk about a TV show we both watched last night (OTA, example) or a sports competition we enjoyed on TV or in person. Not having a copy or not having access to full perfect digital copy with replay in it doesn't suddenly make it impossible for us to discuss it as part of our culture.

Copyright also doesn't exist to "ensure that creative works actually reach the public". It exists to " promote the Progress of Science and useful Arts". Progress could happen if something is shared only with a very small group, or only one person - or for that matter, if a new book by an author is never distributed because the author chooses not to release it, but uses that book as inspiration for their next great work, have we not seen progress?

To suggest that progress is only made when a bread and circuses mentality is satisfied is to entirely miss the point. Progress does not have to occur only in the public eye.

Re: Re: Re:

I don't think anyone is trying to stop things from entering the culture. Rather, I think that the common mistake is to assume that having something enter into the culture can only happen when the author or creator is effectively stripped of their rights. That is not the case at all.

You know, copyrights are not "rights", they are a privilege, an exception to normality that the Congress opted to grant creators in order to provide diffusion of knowledge while providing incentive (ie: financial) to increase such knowledge production. That said, it's not a common mistake. Believing utter draconian punishments and never ending copyright terms actually are common mistakes in the industry and some creators side.

As an example, we as a people didn't need to have endless playback of the Ed Sullivan show for it to enter into our culture.

Indeed but make it unavailable and all it takes is a few generations for it to be completely forgotten. Which incidentally is happening with some older movies rotting in the studios' vaults. You also use other readily available and famous shows as examples but please, provide more obscure ones. Provide examples that aren't available in our digital 'piratey' libraries.

A book being protected by copyright and having the author decline to to new editions printed doesn't suddenly rip it out of the culture.

As I said, give it enough time and it will vanish. Either because the copies will eventually spoil/rot or because lack of access will eventually isolate it to the library where there is a copy of it. Unless others build upon it but this also needs dissemination of the original.

Culture isn't about having your personal copy.

Indeed. It's about diffusion.

You and I can talk about a TV show we both watched last night (OTA, example) or a sports competition we enjoyed on TV or in person.

Unless, of course, the copyrights holders decide they won't make it available or will charge outrageous prices for it. Then you may have watched and I didn't. And you can't even recommend for me because I'm not in a cable plan that has them or won't see it until somebody decides it's time to milk more money out of it with a reprise.

Progress could happen if something is shared only with a very small group, or only one person - or for that matter, if a new book by an author is never distributed because the author chooses not to release it, but uses that book as inspiration for their next great work, have we not seen progress?

Indeed. Before the printing press this was the case. Then knowledge started to spread like wildfire and we saw tremendous progress. Copyright has NOTHING to do with it.

To suggest that progress is only made when a bread and circuses mentality is satisfied is to entirely miss the point. Progress does not have to occur only in the public eye.

And yet when things were more disseminated we saw a tremendous boon in progress as a whole. Even the MAFIAA relied heavily in the lack of copyrights in their beginnings or in the public domain to make awesome new stuff (which they readily locked down).

Re: Re: Re:

Whatever--I think that the common mistake is to assume that having something enter into the culture can only happen when the author or creator is effectively stripped of their rights.

One mistake? I see two in that sentence, but neither is what you're apparently thinking of.

First, "can only happen" ought to read "overwhelmingly mostly happens." Obviously the public enjoys some small benefit from copyrighted works. But the benefit to the public is far greater when the work is in the public domain. Instead of only one or a few people being allowed to make copies, everyone can make copies! Instead of there being a limited number of distributors who limit the availability of the work to those who can pay, everyone can distribute the work and get copies for free! Instead of there being no, or only a handful of derivative works created, countless derivatives can be created! Everyone who has a hankering for making some change or improvement gets to do so once the work is in the public domain. Etc. etc.

Second, the termination of copyright doesn't strip anyone of their rights. It's merely the conclusion of the rights that were granted to the author in the first place. If I rent you a house for a year, you aren't stripped of your rights at the end of the last day of the lease -- you just never had any rights that extended beyond the last day to begin with. The rights that copyright is concerned with are all inherently in the public: the right to copy, the right to distribute, etc. Copyright grants temporary rights to prohibit the public from doing those things. When the copyright ends, the right to prohibit just ends, and now the public can exercise the rights it always held but which were, up til then, suppressed.

[D]o we each need our own digital perfect copy of Monty Python and the Holy Grail before the Knights who say Ni could enter into culture?

No, but so long as copyright empowers a gatekeeper, we're limited as to how far it can enter into our culture. If everyone can freely make and distribute copies, the artificial barriers that copyright presents to inhibit our culture will drop away; then the Knights will enter our culture as fully as they can (limited only by things like whether or not people care about the work to begin with). Right now not only do people have to be interested, they also have to pay money. Getting rid of the money requirement is beneficial for culture. I'm sure that Monty Python would agree, given that they didn't pay anyone to use the Arthur legend (or have to deal with a fussy rightsholder who might refuse to allow them to do so because of their irreverential take on it).

The [rightsholder] doesn't have a magic button to push to make all of the existing copies turn to dust or spontaneously burst into flames.

But if the work is not copyrighted, and everyone can freely copy and distribute it, it's far more secure. It's simply a fact of life: works do get lost. Sometimes authors try to destroy their own works. Sometimes there are just too few copies, and each one eventually succumbs to time. Literally every book we have from antiquity that wasn't carved into clay or stone survives only because people made unauthorized copies of it and spread them around. If you want to ensure that the works of our culture survive, impairments like copyright don't help.

have we not seen progress?

Copyright doesn't exist to ensure that the most meager progress is made. There's no such thing as too much of a good thing. Copyright exists to ensure that more progress is made than would be made otherwise, and ideally that the greatest possible amount of progress is made. This means getting as many works out there as possible, as widespread as possible, as free to use as possible. One small step just isn't good enough; we need giant leaps for all mankind.

Re: Re: Re: Re:

I like how he's casually ignored that having a magic button to delete copies is precisely what the industry has been demanding.

Hell, in the UK they've already backtracked to claim that making backup copies of anything is illegal. If they could have a magical unicorn button to delete the backups we already have, you bet your bottom they would use it.

Rightsholders have proven they can't be trusted with that sort of power whether or not it exists or is feasible.

Re: Re: Re: Re:

" But the benefit to the public is far greater when the work is in the public domain."

Is this really true? Would the public have benefited if a writer (say like Greg Bear) has to work another job to pay his bills, and thus didn't have the time to write all of his thought provoking works? Would the world of music be the same if Jimi Hendrix had been pumping gas or selling insurance instead of being a musician?

Did not TV shows from Ed Sullivan to M*A*S*H and on through Seinfeld all enter into our culture without us having to take away from the creators and artists involved?

The public's benefit isn't just in the work at hand, but the potential of future works, of future developments. You may want to look up the concept of opportunity costs. True public benefit cannot be only measured in the transient second that they get to benefit from a single work, that would be to miss the wonderful cultural influence an author, musician, or artist can have over a long career. Can you imagine Stephen King with only a single novel? Banksy with only a single defaced wall?

"Copyright doesn't exist to ensure that the most meager progress is made."

You are correct, and it doesn't create meager progress. It has been there and been part of the landscape during the biggest revolutions of content creation and distribution. We have been going great guns with a system that allows people to access for great works that would once have only been the domain to kings and wealthy men who could afford to be an artist's patron. Do we really want to go back to a system where works are privately funded and then almost completely locked away for a generation such as what happened with the works of many classical music creators? The works of many of the greatest composers was often locked away for the entire life of the king or patron who paid for them, sort of like locking up a painting in a dark room and never letting anyone see it. Should the best works of our time only be available to the rich, the well off, or to everyone?

Progress... it's not how much you move the needle today, it's how much you move it every day!

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Is [the benefit to the public far greater when the work is in the public domain] really true?

Yes.

Would the public have benefited if a writer (say like Greg Bear) has to work another job to pay his bills, and thus didn't have the time to write all of his thought provoking works?

Well, that opens up the issue of time. Make no mistake: I think that copyright is a great idea, and that if it can produce a greater public benefit than not having it, as I suspect is the case, I'm all for it. Specifically, I'm all for the particular implementation of copyright that produces the greatest benefit for the public and the least harm to the public.

The public benefits when works are created and published. And the public benefits when works enter the public domain. Therefore an ideal world would be one in which all authors created and published as much as they could, yet there were no copyrights. Sadly, this doesn't seem to be practical. So instead, in order to provide incentives to authors to create and publish more than they would otherwise, we borrow the work out of the public domain to a degree, and for a limited time.

But the incentivizing effect of copyright is fairly short-lived; when the 1909 Copyright Act was being drafted, the newspaper industry felt that their interests would be best served by a copyright term of 40-120 hours. And why not? After all, a morning newspaper has a market in the morning, maybe even through the afternoon. By night, there's little call for it, and by the next day almost no one would pay for it at all; instead the vast majority of customers want the new day's newspaper, so it really doesn't harm anyone if the paper can be freely copied once it is literally yesterday's news. Similarly, a typical book will sell most of the copies it will ever sell within about 18 months of publication in a given medium. Fine art generally isn't reproduced at all, and usually doesn't need copyright (sure, every college student has a Van Gogh or Warhol poster or something, but most fine artists can't sell anything, much less have to deal with pirates). Movies may have the longest economic lifespan, since they'll get released and rereleased in a variety of venues and formats over the course of years.

So it's no problem to grant a bit of copyright -- ideally the bare minimum needed to incentivize the author to create and publish the work -- so as to produce some degree of public benefit. But then the work needs to enter the public domain, as rapidly and as fully as possible, so that the public can enjoy the full benefit of the work.

You seem to be assuming that because a relatively small amount of incentive is needed, copyrights should last forever, even though that would far exceed their value to the author, not to mention the harm it would cause the public. You're just wrong about that.

The public's benefit isn't just in the work at hand, but the potential of future works, of future developments.

Precisely. But I think you're forgetting it. Many of our great works are unauthorized adaptations of preexisting works. The public benefits when anyone can say 'I could do that better,' or 'I liked that story, but what if we changed this and that' and produces another version, or even just revives something that people had forgotten about. If a work is copyrighted, the copyright holder stands as a gatekeeper; if they don't want the work adapted, if the adaptation doesn't suit them, if they hold out for more money, then nothing happens.

Future works are incredibly important to the public. Allowing the authors, or their heirs or estates or assignees the power to control what happens in the future is simply unacceptable. When Jefferson was discussing patent and copyright terms with Madison during the drafting of the Constitution, he specifically said that he favored a single 19 year term for copyrights on the ground that one generation should not have the right to bind later generations; obligations should therefore last only so long as the average lifespan of an adult (that is the number of years after they became adults at age 21), which happened to be 19 years.

I think we have better ways of figuring out appropriate term lengths now, but your proposal that we should just have infinitely long copyright terms is bizarre and at odds with your actual argument.

Can you imagine Stephen King with only a single novel? Banksy with only a single defaced wall?

Short copyright terms encourage authors to create multiple works; not only does economic reality (most works have worthless copyrights; of the remainder, most works only have copyright-related economic value for a brief time) tend to stop them from resting on their laurels, but if terms are short too, they'll be spurred on to create more since they're going to have to compete with their past selves.

(Also Banksy is probably not a great example; he'd risk losing his anonymity if he tried to enforce his rights)

It has been there and been part of the landscape during the biggest revolutions of content creation and distribution.

Correlation is not causation. Copyright is probably small potatoes compared to the invention of and improvements to the printing press, improvements in transporting copies, the invention of sound recording, of motion pictures, of electronic broadcasts, increased leisure time, better artificial lighting, improved literacy rates, etc. America was going great guns in the 18th and 19th century without granting copyrights to foreign authors who were widely pirated here; granting them copyrights doesn't seem to have changed things all that much for the better. America was going great guns with architectural works which were not copyrightable here until 1990; now that we grant copyrights for such works, the field of architecture has not exploded as a consequence. Improvements in CAD software, materials engineering, trends as to what's fashionable in architecture control the field. You give copyright far more credit than it is due.

Do we really want to go back to a system where works are privately funded and then almost completely locked away for a generation such as what happened with the works of many classical music creators? The works of many of the greatest composers was often locked away for the entire life of the king or patron who paid for them, sort of like locking up a painting in a dark room and never letting anyone see it. Should the best works of our time only be available to the rich, the well off, or to everyone?

There's nothing wrong with patronage, patronage continues today, and there's no reason to expect that private patronage would take over if copyright were abolished (even though I merely advocate for copyright to be reformed to a level that best serves the public, which is likely not abolishment). Look at things like Kickstarter, which allow groups of small-time patrons to band together to finance a work. It's not appreciably different than copyright, in which a publisher acts as a patron for an author, financing the work that the publisher wants, rejecting the work that the publisher doesn't want. A publisher is just interested in what can be sold, rather than what's good. Otherwise it all works out much the same.

Progress... it's not how much you move the needle today, it's how much you move it every day!

Exactly. And since a long copyright term doesn't accomplish anything significant that a short copyright term accomplishes, copyright terms should be short, since they only accomplish a little bit of progress (and get in the way of a whole lot more).

I have an idea. What the congress has the power to grant, the congress also has the power to take away. If they cry and whine too much because they aren’t getting rich from it (or know how to) then just eliminate copyright all together. Teach them a lesson about what a truly free market really is. If they dont like it, too bad. The general public isnt really asking their opinions and doesnt really care.

The Original Idea...

The original idea was good - create a situation where the playing field was level. Everyone knew what was available, what it cost, and everyone who wanted a license paid the same price for the same rights. That's still what needs to happen. It doesn't need to be BMI or ASCAP, but it needs to be a central registry. If you want to allow radio play, sign up here. If you need to allow internet streaming, sign up here.

Instead of private, specific licenses, the only option is to allow with the standard rate or not. maybe, signing a specific, single license with more than one different company, and you are automatically signing up for the standard rates for anyone. So you can have an "exclusive", but for general distribution, it's the One True Way and open for anyone to use for the standard fee.

As for vetos versus licensing - if you had a standard sign-up for licensing, and a standard fee schedule, it removes the temptation for playing one holder against the other. Note any one holder can *authorize* use, but the license fee is still split according to the share proportions -if Bob owns 20%, he can authorize licensing but still gets only his 20% of the proceeds.

But single-shareholder permission option is no different than a business partnership - in a partnership, any partner can commit the whole to a contract relevant to the business of the partnership. And... what else would a shared-rights publication be other than a partnership?

Re: The Original Idea...

With the caveat that the author has the freedom to pre-arrange the fees up to the maximum allowable such that if I were part of that scheme I could make big companies pay me the full whack, but if someone wants to do a fan translation of one of my songs, they can go right ahead for bugger all.

The problem is the monopoly.

The big thing wrong with copyright is that it lasts so long that new works which reuse existing works (and they all do) are prevented from appearing for close to a century, unless the owner of the old work okays it (which approximately never happens). Under a more sensible copyright scheme, not only could works of music be remixed within a few years of their first release, but things like computer software -- which typically go obsolete or get replaced by new versions in 2 to 5 years -- could be improved on by third parties as soon as they are taken off the market by the original publisher.

What I'm proposing is that after a short initial period, depending on the medium but no longer than 5 years, copyright should be narrowed to only the right to collect a standard royalty (like the mechanical licensing scheme that used to exist for music), and neither the artist nor a publisher should have any veto power over its use, including derived works. Furthermore, I'd allow the user to make that standard payment to the copyright office, thus eliminating the orphaned works problem.

Re: The problem is the monopoly.

I like your ideas, but honestly just shortening the time to 10-14 years with a 14 year extension, where each work has to be registered in order to claim copyright, would not only solve the orphaned works problem it would address the other ones you brought up.

As for paying the licensing fees to the Copyright Office, I'm not sure whether that would work or not but can imagine the collection societies freaking out about it.